& Anr Vs. B.S. David Paul  Insc 50 (1 February 2006)
Pasayat & R.V. Raveendran
(With C.A. No. 2957 of 2000 and C.A. No. 2958 of 2000) ARIJIT PASAYAT, J. )
appeals involve identical issues and are therefore disposed of by this common
Pradesh State Road Transport Corporation (in short the 'Corporation') calls in
question legality of the judgments rendered by the High Court holding that the
respondent in each of the appeals was entitled to back wages.
brief reference to the factual position which is almost undisputed would
who claimed to be employee of the appellant-Corporation claimed before the Labour Court, Hyderabad (in short 'the Labour Court') that their services were
illegally terminated. Reference was made by the State Government under the
Industrial Disputes Act, 1947 (in short the 'Act').
took the stand that they were not its employees and, in fact, were employees of
independent contractors. The Labour Court
did not accept the stand and held that the termination was bad and the
concerned applicants were entitled for reinstatement. It is not in dispute that
the appellant-Corporation has reinstated the respondents. Subsequently, the
respondents filed application before the Labour Court stating that they were
entitled to back wages for the period they were out of employment and they were
entitled to be paid back wages in terms of Section 33-C (2) of the Act.
Corporation resisted the claim on the ground that there was no direction for
payment of back wages and, therefore, Section 33-C (2) had no application. The Labour Court did not accept the stand and
directed payment. Such adjudication was challenged before the High Court which
dismissed the writ application.
counsel for the appellant submitted that when the only direction given by the Labour Court was reinstatement, there was no
question of payment of any back wages and in any event Section 33 C (2) had no
counsel for the respondents on the other hand submitted that when the
reinstatement was directed, back wages were the natural consequence.
principle of law on point is no more res integra. This 212) succinctly
crystallized the principle of law in Paragraph 9 of the judgment on Page SCC 215
: "We find merit in the submission so made.
is a difference between an order of reinstatement accompanied by a simple
direction for continuity of service and a direction where reinstatement is
accompanied by a specific direction that the employee shall be entitled to all
the consequential benefits, which necessarily flow from reinstatement or
accompanied by a specific direction that the employee shall be entitled to the
benefit of the increments earned during the period of absence. In our opinion,
the employee after having been held guilty of unauthorized absence from duty
cannot claim the benefit of increments notionally earned during the period of
unauthorized absence in the absence of a specific direction in that regard and
merely because he has been directed to be reinstated with the benefit of
continuity in service." The above position was re-iterated in A.P. State
Road Transport Corporation and Ors. v. Abdul Kareem (2005 (6) SCC 36) and in
Rajasthan State Road Transport Corporation and Ors. v. Shyam Bihari Lal Gupta
(2005 (7) SCC 406).
case of State Bank of India vs. Ram Chandra Dubey & Ors.,
(2001) 1 SCC 73, this Court held as under:
reference is made to an Industrial Tribunal to adjudicate the question not only
as to whether the termination of a workman is justified or not but to grant
appropriate relief, it would consist of examination of the question whether the
reinstatement should be with full or partial back wages or none. Such a
question is one of fact depending upon the evidence to be produced before the
Tribunal. If after the termination of the employment, the workman is gainfully
employed elsewhere it is one of the factors to be considered in determining
whether or not reinstatement should be with full back wages or with continuity
of employment. Such questions can be appropriately examined only in a
reference is made under Section 10 of the Act, all incidental questions arising
thereto can be determined by the Tribunal and in this particular case, a
specific question has been referred to the Tribunal as to the nature of relief
to be granted to the workmen.
enunciated in the decisions referred by either side can be summed up as
a workman is entitled to receive from his employer any money or any benefit
which is capable of being computed in terms of money and which he is entitled
to receive from his employer and is denied of such benefit can approach Labour
Court under Section 33-C(2) of the Act. The benefit sought to be enforced under
Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing
from a pre-existing right. The difference between a pre-existing right or
benefit on one hand and the right or benefit, which is considered just and fair
on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2)
of the Act while the latter does not. It cannot be spelt out from the award in
the present case that such a right or benefit has accrued to the workman as the
specific question of the relief granted is confined only to the reinstatement
without stating anything more as to the back wages.
that relief must be deemed to have been denied, for what is claimed but not
granted necessarily gets denied in judicial or quasi- judicial proceeding.
Further when a question arises as to the adjudication of a claim for back wages
all relevant circumstances which will have to be gone into, are to be
considered in a judicious manner. Therefore, the appropriate forum wherein such
question of back wages could be decided is only in a proceeding to whom a
reference under Section 10 of the Act is made. To state that merely upon
reinstatement, a workman would be entitled, under the terms of award, to all
his arrears of pay and allowances would be incorrect because several factors
will have to be considered, as stated earlier, to find out whether the workman
is entitled to back wages at all and to what extent. Therefore, we are of the
view that the High Court ought not to have presumed that the award of the Labour
Court for grant of back wages is implied in the relief of reinstatement or that
the award of reinstatement itself conferred right for claim of back wages"
The position was recently reiterated by three-judge Bench in State of U.P. and
Another v. Brijpal Singh (2005 (8) SCC 58).
orders of the Labour
Court as affirmed by
the High Court are indefensible, deserve to be set aside, which we direct.
appeals are allowed but without any order as to costs.